One Nation Under God?

The words “under God” in the Pledge of Allegiance and the phrase “In God we trust” on the back of a dollar bill haven’t been there as long as most Americans might think. Those references were inserted in the 1950s during the Eisenhower administration, the same decade that the National Prayer Breakfast was launched, according to writer Kevin Kruse. His new book is One Nation Under God. Here is an interview with Kruse from Fresh Air.
And here is Kruse in a KCRW debate with: 

Kevin Kruse, Princeton University

Gary Smith, Grove City College

Alan Cooperman, Pew Forum on Religion and Public Life

Mary Ellen Sikes, Secular Majority

Supreme Court throws out conviction for violent Facebook postings

The Supreme Court on Monday made it harder for prosecutors to convict those who make violent statements on Facebook and other social media, saying it is not enough that an ordinary person would find the rants threatening.

In its first examination of the murky rules regarding conduct on the Internet, the court moved cautiously while throwing out the conviction of a Pennsylvania man whose postings, delivered in rap-lyric style, suggested killing his estranged wife, federal law enforcement officials and even a kindergarten class.

The narrow opinion said it was not necessary to address whether the First Amendment’s guarantee of free speech protected Elonis’s Facebook statements. The opinion also declined to take a position on whether it would be enough for a conviction to show that a defendant had been reckless in making inflammatory statements, as Alito proposed.

Paraphrasing the famous holding from Marbury v. Madison that it is the court’s prerogative to say what the law is, Alito said the court was announcing, “It is emphatically the prerogative of this court to say only what the law is not.”

Pardon Pot Prisoners?

On Monday, President Obama commuted the sentences of 46 federal prisoners locked up for nonviolent drug offenses, raising the total number of commutations he’s issued to 89. The decision came 15 months after former Attorney General Eric Holder announced the president’s request to prioritize clemency applications from nonviolent, well-behaved, oversentenced drug offenders.

While there’s still time, the president should consider an act of clemency that measures up to history: pardoning every marijuana offender.

Read The Atlantic’s argument…

The Comparative Constitutions Project

You can now read, search, and compare 160 constitutions from around the world thanks to Constitute, a website launched by Google on Monday.

The site, developed by the Comparative Constitutions Project, with seed funding by Google Ideas, has digitized the constitutions of 160 countries, making them fully searchable. A user can browse the constitutions using nearly 350 curated tagged topics like religion, political parties, or civil and political rights; or simply search by year or country.

The “I Heart Boobies” Case Could Decide the Fate of Free Speech for Students

This week, the 3rd Circuit Court of Appeals, based in Philadelphia, ruled in a longstanding case about the appropriateness of silicone bracelets inscribed with “I ? boobies!” in schools. The bracelets are sold around the country by the Keep A Breast Foundation to raise awareness for breast cancer research.  Often, students wear the bracelets to support family members struggling with the disease. But across the country, schools have banned the bracelets as offensive sexual speech, confiscated them, and suspended students for wearing them. In some schools, officials reportedly snip them right off. The constitutional question is whether the bracelets are lewd sexual speech that proves distracting and disruptive in schools, or a political symbol of support for breast cancer awareness.

Two middle school students in Easton, Penn., wore the bracelets (with their parents’ permission) despite a school ban that called them “distracting and demeaning.” The girls were suspended and banned from participating in extracurriculars.

More at Slate

What a Cattle-Theft Case Could Mean for U.S. Law Enforcement Use of Drones

It was a strange and historic moment when North Dakota police decided to call in an unmanned Predator surveillance drone over a farmers’ dispute about animals. Now a court case in the small town of Lakota has become the primary testing ground for the use of unmanned aircraft by law enforcement across America.

The odd episode began in June last year when six cows wandered onto land owned by Rodney Brossart, who declined to return them to their owner until he was paid for the feed the cattle had consumed.

When police tried to get involved, Brossart’s family—who “prefer to limit their contact with governmental actors,” according to a court brief—allegedly chased the officers away with guns. Ultimately, a military-grade Department of Homeland Security-owned unmanned drone was deployed (for reasons that are disputed),  and a local SWAT team called in. Brossart became the first American to be arrested with the assistance of a drone—and the six cows were returned.

Quick is arguing that “the warrantless use of unmanned surveillance aircraft” was unlawful on Fourth Amendment grounds. He points to the United States Supreme Court judgment in Kyllo v. United States, which held that obtaining information by sense-enhancing technology not available for general public will be subject to constitutional protections against unreasonable searches and seizures.

Founding Rivalries: More Like Squabbling Brothers Than Fathers

Intrigue, duplicity, back-stabbing, and character assassination. Think it sounds like American politics today?

Try the 1790s, a decade that saw Thomas Paine–famous pamphleteer for the revolutionary cause–denounce President George Washington as a “hypocrite in public life” for signing a treaty with England. And earlier in the same decade, you’ll find the recently retired secretary of state, Thomas Jefferson, telling his crony James Madison to get busy destroying the good name of Treasury Secretary Alexander Hamilton. Yes, the same Hamilton whom Madison had collaborated with only a few years before in writing the famous articles in support of the Constitution.

And back-stabbing? Well, there’s the fine case of Ben Franklin penning a secret missive to Congress accusing fellow emissary John Adams of behavior “improper and unbecoming” for refusing to truckle to ally France’s every whim. Not nasty enough? Try Vice President Jefferson telling a French diplomat that President Adams is “a vain, irritable, stubborn” man. Given such a climate of slander and treachery, should we be surprised at the 1804 duel between the vice president of the United States and the former secretary of the Treasury, a duel in which the latter was killed?

Americans who think they live in politically divisive times might do well to look back at the first decades of their republic’s history.

Originalist Sin: the Founding Fathers not only supported mandates, they passed laws imposing them

The five conservative justices on the Supreme Court—Thomas, Alito, Scalia, Roberts and Kennedy—cloak themselves in the myth that they are somehow channeling the wisdom and understanding of the Founding Fathers, the original intent that guided the drafting of the Constitution.  I believe the premise of their argument is itself suspect: It is not clear to me how much weight should be given  to non-textually based intent that is practically impossible to discern more than 200 years later. Most of the issues over which there is constitutional dispute today could not even have been envisioned when the document was drafted.

One Document, Under Siege

Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.

People on the right and left constantly ask what the framers would say about some event that is happening today. What would the framers say about whether the drones over Libya constitute a violation of Article I, Section 8, which gives Congress the power to declare war? Well, since George Washington didn’t even dream that man could fly, much less use a global-positioning satellite to aim a missile, it’s hard to say what he would think. What would the framers say about whether a tax on people who did not buy health insurance is an abuse of Congress’s authority under the commerce clause? Well, since James Madison did not know what health insurance was and doctors back then still used leeches, it’s difficult to know what he would say. (Time)

Seth Waxman dropped the butt-bomb

The issue before the court is not whether the FCC can regulate obscenity. It can. The issue is whether the FCC can regulate “indecency,” as defined in a seminal 1978 case about a daytime radio broadcast of George Carlin’s “Filthy Words” monologue as “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs” between 6 a.m. and 10 p.m., when children might be watching.

Interpreting The Constitution In The Digital Era

GPS monitors can track your every movement. Brain scans can now see lies forming in your brain. And advancements in genetic engineering may soon allow parents to engineer what their children will look and be like.

These new technologies are “challenging our Constitutional categories in really dramatic ways,” says George Washington University law professor Jeffrey Rosen. “And what’s so striking is that none of the existing amendments give clear answers to the most basic questions we’re having today.”

Listen to this episode of Fresh Air, where Rosen, the co-editor of the  Constitution 3.0: Freedom and Technological Change, details how technological changes that were unimaginable at the time of the Founding Fathers are challenging our notions of things like personal vs. private space, freedom of speech and our own individual autonomy.

Barnes v. Glen Theatre and Kitty Kat Lounge

“Respondents are two establishments in South Bend, Indiana, that wish to provide totally nude dancing as entertainment, and individual dancers who are employed at these establishments. They claim that the First Amendment’s guarantee of freedom of expression prevents the State of Indiana from enforcing its public indecency law to prevent this form of dancing. We reject their claim.”

Read this Supreme Court decision written by Chief Justice Rehnquist.